On May Day, the Berkeley Peace and Justice Commission (PJC) and the Berkeley Police Review Commission (PRC) held a town hall on the issue of drones in Berkeley, which is part of Alameda County. County Sheriff Greg Ahern’s plans to purchase a drone, made public in fall of last year, spurred activists to push for a public hearing in February. The hearing was packed with residents of the county who were vocally opposed to the purchase. Without a clear policy, Sheriff Ahern would potentially be able to lend his drone to the Berkeley Police Department and other cities. He would also be able to fly his drone into Berkeley if he were in pursuit of a suspect.

In December of last year, the City Council started discussing a potential drone policy for the City of Berkeley. While the PJC recommended that Berkeley be a no-drone zone, some of the city council members were convinced that an all out ban was not ideal. They felt that drones could be used for “natural disasters, to locate missing persons or assist in crime investigations.” After voting down the PJC’s proposal, the council directed the PJC, along with the PRC and the Disaster and Fire Safety Commission to work together to make a recommendation.

The May 1st town hall featured overviews of the legal concerns drones raise from attorney Linda Lye of the ACLU of Northern California, who made it clear why drones are “qualitatively different” from other forms of aerial surveillance. Jennifer Urban, Professor and Co-Director at the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley, explained that courts are much slower than technological change, meaning that Fourth Amendment jurisprudence can lag years behind the widespread implementation of technology like drones. The upshot of her analysis? Community action and legislative fixes are the necessary response.

Parker Higgins, privacy activist for the Electronic Frontier Foundation(EFF) emphasized the technical aspects of drones and how they affect privacy, and Neil Satterlund of Alameda County Against Drones (ACAD) emphasized concerns around mission creep, meaning hat drones would inevitably be used for purposes far beyond what they were originally approved for.

One of the most powerful voices at the hearing was that of Andrea Pritchett of Berkeley Copwatch. She  succintly explained why a no-drones zone was the best solution. Reflecting on Copwatch’s documentation of existing abuses of police power in Berkeley, Andrea stated that regulations on the use of drones such as those suggested by the ACLU would be:

wonderful in a climate with effective police accountability. In the absence of a way to control the police, even the best guidelines, restrictions, suggestions, are not really gonna have an impact.

(more…)

Late last month, the Supreme Court of the United States handed down a victory for the Fourth Amendment and the largely African-American and Latino communities persecuted in name of the war on drugs. At the same time, the reasoning deployed by the 5-4 majority (written by Justice Scalia) does nothing to fix our classist Fourth Amendment jurisprudence, which protects one’s privacy in proportion to the size of one’s yard.

The case, Florida v. Jardines, involved whether the police’s use of a drug-sniffing dog in one’s yard to investigate suspected marijuana cultivation was a “search” and, therefore, required a warrant. In finding that the use of the dog violated the Fourth Amendment, the Court used a property-based notion of the Fourth Amendment.

The Court held that “[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has occurred.” Because one’s yard is part of one’s house and the police intruded upon it without permission to use the K9, a “search” had occurred and a warrant is required.

The majority refused to consider whether the defendant also had a reasonable expectation of privacy in the odors emitted from his home. The decision goes to lengths to emphasize that the reasonable-expectations test has “been added to, not substituted for the traditional property-based understanding of the Fourth Amendment.” Therefore, it reasons, there is no need to pass on whether the defendant’s expectation of privacy was justified because the search violated the property-based protections.

(more…)

An updated version of the Electronic Communications Privacy Act (ECPA) of 1986 has been approved by the Senate Judiciary Committee. The ECPA governs  privacy regulations for nearly everything on the internet, and has not been updated in 27 years, despite significantly evolved technology. Other reforms for the ECPA were passed by the committee November 2012, but not voted on by the whole Senate before the end of their session.

The current ECPA requires a warrant for emails less than six months old. Other information stored online or older emails can be accessed by government officials with only a subpoena. The current version of the law has led to many confused and contradictory legal rulings on what counts as “electronic storage,” a term defined before cloud computing. The updated version passed by the Judiciary Committee, would require officials to get a search warrant from a judge before searching for any online data.

The Bill of Rights Defense Committee, as part of the Digital Due Process Coalition, joined over eighty other organizations and companies to send a letter to the Chairman of the Senate committee, Patrick Leahy, endorsing the amendments to the law. The letter states that the updates, “would provide clarity and certainty to law enforcement agencies at all levels and to American businesses developing innovative new services and competing in a global marketplace.” Other cosigners included Microsoft, Facebook, Mozilla, Twitter, Google, and Yahoo.

The BORDC’s Shahid Buttar said that:

Laws protecting our privacy online have been obsolete for decades, leaving all Americans at risk of arbitrary electronic seizures. The proposed reforms to ECPA are not enough by a long shot, but  it is long past time for Congress to fix the digital exception to the 4^th amendment.

These updates to ECPA must be passed in the Senate and the House before they are approved, but according to Politico, Congress is not expected to oppose the bipartisan amendments. It is important to remember that just a week ago the House of Representatives passed the Cyber Intelligence Sharing and Protection Act (CISPA). The Senate has not seemed eager to approve CISPA and is making small steps towards protecting our online information by updating ECPA, but more regulation is needed to bring constitutional protection into the digital age.

Shahid Buttar, Executive Director of BORDC will be appeared as a guest on Thom Hartmann’s show The Big Picture on Friday, April 19 at 7pm ET.  Thom Hartmann is a progressive, nationally syndicated talk show host and author of 24 books in print on issues ranging from class conflict, national security and economics to ADHD and American history.

Shahid was welcomed back to the Thom Hartmann program as a guest panelist to discuss U.S. National Security and the war on terror.  The panel  specifically addressed issues including torture, surveillance, and the recurring role of the CIA in prompting international conflict.

PART ONE

PART TWO

This commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published on April 22, 2013.

“Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive.”—C.S. Lewis

Caught up in the televised drama of a military-style manhunt for the suspects in the Boston Marathon explosion, most Americans fail to realize that the world around them has been suddenly and jarringly shifted off its axis, that axis being the U.S. Constitution.

For those like myself who have studied emerging police states, the sight of a city placed under martial law—its citizens under house arrest (officials used the Orwellian phrase “shelter in place” to describe the mandatory lockdown), military-style helicopters equipped with thermal imaging devices buzzing the skies, tanks and armored vehicles on the streets, and snipers perched on rooftops, while thousands of black-garbed police swarmed the streets and SWAT teams carried out house-to-house searches in search of two young and seemingly unlikely bombing suspects—leaves us in a growing state of unease.

Mind you, these are no longer warning signs of a steadily encroaching police state. The police state has arrived.

Equally unnerving is the ease with which Americans welcomed the city-wide lockdown, the routine invasion of their privacy, and the dismantling of every constitutional right intended to serve as a bulwark against government abuses. Watching it unfold, I couldn’t help but think of Nazi Field Marshal Hermann Goering’s remarks during the Nuremberg trials. As Goering noted:

It is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.

As the events in Boston have made clear, it does indeed work the same in every country. The same propaganda and police state tactics that worked for Adolf Hitler 80 years ago continue to be employed with great success in a post-9/11 America.

Whatever the threat to so-called security—whether it’s rumored weapons of mass destruction, school shootings, or alleged acts of terrorism—it doesn’t take much for the American people to march in lockstep with the government’s dictates, even if it means submitting to martial law, having their homes searched, and being stripped of one’s constitutional rights at a moment’s notice.

As journalist Andrew O’Hehir observes in Salon:

In America after 9/11, we made a deal with the devil, or with Dick Cheney, which is much the same thing. We agreed to give up most of our enumerated rights and civil liberties (except for the sacrosanct Second Amendment, of course) in exchange for a lot of hyper-patriotic tough talk, the promise of “security” and the freedom to go on sitting on our asses and consuming whatever the hell we wanted to. Don’t look the other way and tell me that you signed a petition or voted for John Kerry or whatever. The fact is that whatever dignified private opinions you and I may hold, we did not do enough to stop it, and our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

Particularly disheartening is the fact that Americans, consumed with the need for vengeance, seem even less concerned about protecting the rights of others, especially if those “others” happen to be of a different skin color or nationality. The public response to the manhunt, capture and subsequent treatment of brothers Tamerlan and Dzhokhar Tsarnaev is merely the latest example of America’s xenophobic mindset, which was also a driving force behind the roundup and detention of hundreds of Arab, South Asian and Muslim men following 9/11, internment camps that housed more than 18,000 people of Japanese ancestry during World War II, and the arrest and deportation of thousands of “radical” noncitizens during America’s first Red Scare.

Moreover, there has been little outcry over the Obama administration’s decision to deny 19-year-old U.S. citizen Dzhokhar Tsarnaev his due process rights and treat him as an enemy combatant, first off by interrogating him without reading him his Miranda rights (“You have the right to remain silent. Anything you say can and will be used against you in a court of law…”).

Presently, under the public safety exception to the Miranda rule, if law enforcement agents believe a suspect has information that might reduce a substantial threat, they can wait to give the Miranda warning. For years now, however, the Obama administration has been lobbying to see this exception extended to all cases involving so-called terror suspects, including American citizens. Tsarnaev’s case may prove to be the game-changer. Yet as journalist Emily Bazelon points out for Slate: “Why should I care that no one’s reading Dzhokhar Tsarnaev his Miranda rights? When the law gets bent out of shape for him, it’s easier to bend out of shape for the rest of us.”

The U.S. Supreme Court rightly recognized in its 1966 ruling in Miranda v. Arizona that police officers must advise a suspect of his/her civil rights once the suspect has been taken into custody, because the police can and often do take advantage of the fact that most Americans don’t know their rights. There have been few exceptions to the Miranda rule over the last 40 years or so, and with good reason. However, if the Obama administration is allowed to scale back the Miranda rule, especially as it applies to U.S. citizens, it would be yet another dangerous expansion of government power at the expense of citizens’ civil rights.

This continual undermining of the rules that protect civil liberties, not to mention the incessant rush to judgment by politicians, members of the media and the public, will inevitably have far-reaching consequences on a populace that not only remains ignorant about their rights but is inclined to sacrifice their liberties for phantom promises of safety.

Moments after taking Tsarnaev into custody, the Boston Police Dept. tweeted “CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won.” Yet with Tsarnaev and his brother having been charged, tried and convicted by the government, the media and the police—all without ever having stepped foot inside a courtroom—it remains to be seen whether justice has indeed won.

The lesson for the rest of us is this: once a free people allows the government to make inroads into their freedoms or uses those same freedoms as bargaining chips for security, it quickly becomes a slippery slope to outright tyranny. And it doesn’t really matter whether it’s a Democrat or a Republican at the helm, because the bureaucratic mindset on both sides of the aisle now seems to embody the same philosophy of authoritarian government. Increasingly, those on the left who once hailed Barack Obama as the antidote for restoring the numerous civil liberties that were lost or undermined as a result of Bush-era policies are finding themselves forced to acknowledge that threats to civil liberties are worse under Obama.

Clearly, the outlook for civil liberties under Obama grows bleaker by the day, from his embrace of indefinite detention for U.S. citizens and drone kill lists to warrantless surveillance of phone, email and internet communications, and prosecutions of government whistleblowers. Most recently, capitalizing on the nation’s heightened emotions, confusion and fear, government officials used the Boston Marathon tragedy as a means of extending the reach of the police state, starting with the House of Representatives’ overwhelming passage of the controversial Cyber Intelligence Sharing and Protection Act (CISPA), which opens the door to greater internet surveillance by the government.

These troubling developments are the outward manifestations of an inner, philosophical shift underway in how the government views not only the Constitution and the Bill of Rights, but “we the people,” as well. What this reflects is a move away from a government bound by the rule of law to one that seeks total control through the imposition of its own self-serving laws on the populace.

All the while, the American people remain largely oblivious to the looming threats to their freedoms, eager to be persuaded that the government can solve the problems that plague us—whether it be terrorism, an economic depression, an environmental disaster or even a flu epidemic. Yet having bought into the false notion that the government can ensure not only our safety but our happiness and will take care of us from cradle to grave—that is, from daycare centers to nursing homes, we have in actuality allowed ourselves to be bridled and turned into slaves at the bidding of a government that cares little for our freedoms or our happiness.

On Thursday, April 18, despite unresolved  and integral privacy issues, the House of Representatives voted against privacy and approved the Cyber Intelligence Sharing and Protection Act (CISPA). The legislation passed with 288 votes in favor and 127 against. While the majority of yes votes were Republican, nearly half of the Democrats in the House voted yes.

The vote comes on the heels of the CISPA Week of Action, in which corporations and Americans made their opposition to the bill clear. Companies such as Craigslist and Firefox took part and thousands of people contacted their representatives in Congress to express their concern around CISPA. Earlier this week, the White House also issued a veto threat, stating:

[T]he administration still seeks additional improvements and if the bill, as currently crafted, were presented to the president, his senior advisers would recommend that he veto the bill.

CISPA passed out of the House Intelligence Committee last week by a vote of 18-2. The bill was marked up in a closed session on Thursday, April 10, despite urgings from the privacy and civil liberties community to the contrary. BORDC, along with 40 other organizations, signed a letter urging an open and transparent markup. The closed markup begs the question: if the bill presents no privacy concerns, why not move it forward in a transparent and open way?

Unsurprisingly, the markup did not yield a significantly improved version of the bill. The committee voted down four amendments that would have significantly increased privacy protections. On the floor, the House voted down further privacy amendments, including one amendment that:

would have ensured companies’ privacy promises — including their terms of use and privacy policies — remained valid and legally enforceable in the future. Another would have curbed police ability to conduct warrantless searches of CISPA-shared data.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions, brushing over the legal protections from liability for negligent actions by corporations that the bill creates. This is hardly surprising, consider the corporate interests behind the bill, and the dollars they have spent on lobbying. In fact, CISPA supporters spent 140 times as much lobbying as CISPA opponents. Similarly, CISPA supporters have donated 13 times more money in campaign contributions as CISPA.

However, it appears that the Senate has not been convinced. The bill still has to be approved in the Senate, and it appears that they are not eager to move.  Senate reticence and the White House veto threat are good news, but anyone concerned about online privacy should continue to check out Electronic Frontier Foundation’s CISPA action page.

This week, Bill of Rights Defense Committee is releasing model drone legislation to assist local communities and states in the growing battle against domestic surveillance drones. BORDC worked with the organizers across the country  who have been leading the opposition against rushed drone proliferation. The American Friends Service Committee, Alameda County Against Drones, the No Drones Network,  and the Tenth Amendment Center all consulted on the language.

In response to the diversity of grassroots organizing efforts currently taking place, there are two models of the legislation. One creates a drone free zone, meaning it completely prohibits the use of drones over a city or county to the extent legally permissible. The other strictly limits the use of drones to specific situations. Both of the models contain significant explanations of why unregulated drone proliferation and use is so deeply concerning.  They also contain policy statements urging action at the state and federal level to restrict drone use.

The regulated use of drones model allows law enforcement to use drones only when they have obtained a warrant from a judge and they certify that drones are the least expensive and best option. It would also allow non-law enforcement missions, including search and rescue, fire response and prevention, and hazardous material spills but the language ensures that these exceptions will be strictly regulated.  Additionally, there are very strict auditing requirements and regulations on the use and destruction of data obtained via drones.  Portions of this model were contributed by civil rights lawyer David Frankel, representing a grassroots coalition called Aligning for Responsible Droning (“ARD”).

The need for action on drones right now is clear. As the prefatory clauses of the model legislation emphasize, drones have the potential to introduce ambient and persistent surveillance, meaning surveillance could be everywhere at all times and impossible to avoid. That’s because the drone technology ensures that specific and limited surveillance is impossible. When strict regulations are not imposed, drones can potentially catch images of everyday activity on their way to and from specific missions and law enforcement can use that information in any way they want. There is little incentive for law enforcement not to exploit this ability. What’s worse is that drone use will exacerbate the targeting of vulnerable groups by law enforcement.  Biased policing through the local enforcement of federal immigration laws, arrests for low level victimless crimes and racial and religious profiling will inevitably increase.

Because of the major concerns around domestic surveillance drones, activists and community leaders across the country have  begun to put the halt on unimpeded drone proliferation. Legislatures in at least 31 states have introduced measures to regulate, limit, or prohibit the use of drones for domestic surveillance. However, not all of the legislation has had the chance to get to a vote, and many of these bills contain significant loopholes. That is why action at the local level is opportune. Recently, Charlottesville, VA, became the first city to pass a resolution imposing a moratorium on drones, and called on state officials to implement a statewide moratorium.  Just this month, St. Bonaficius, MN, followed suit, outlawing the use of drones for up to 400 feet above the city. Similarly, as the result of the advocacy of the group Alameda County Against Drones the Public Protection Committee of the Alameda County Board of Representatives held a packed public hearing around Sheriff Greg Ahern’s purchase of a surveillance drone.

The surge in organizing around the domestic use of drones  has dovetailed with growing concern at the national level over the use of drones for so-called “targeted killings” overseas. Last year, in December 2012, representatives of various groups around the country created the Network to Stop Drone Surveillance and Warfare (NSDSW), a “nationwide grassroots network to stop drone surveillance and warfare.” The group’s national month of action in April has kicked off with demonstrations across the country, and has already helped increase awareness of the issues around domestic and foreign drone use. Joe Scarry of the No Drones Network and NSDSW, notes:

Starting with the protest at Creech Air Force Base in Nevada at the end of March, events and actions have taken place so far in Boston, New York City, Philadelphia, Baltimore, Fayetteville, Ft. Wayne, Dayton, Chicago, Janesville, Minneapolis, San Francisco, and San Diego, and dozens more are planned throughout the month.

The month of action highlights three sets of institutions that encourage the proliferation of drone technology; drone manufacturers, colleges and universities conducting drone research, and military bases involved in operating drones.

Not content to rest with killing thousands of civilians overseas, the drone industy is seeking to expand their market by spying on Americans at home, and they have spent millions of dollars to lobby Congress to that effect. Drone manufacturers and their representatives have made it plain that they are willing to go to any length to ensure widespread adoption of their military technology. As demonstrated by the presence of a drone caucus in congress, elected officials are listening to them.

The good news, however, is that the time is ripe for local organizing. The drone lobby is far weaker in cities or counties, where BORDC’s model legislation is intended to be used. The models are organizing tools, and BORDC encourages local grassroots groups to edit and customize them as needed. With the availability of both models, as well as myriad resources in an annotated version of the legislation , these models can be used anywhere by anyone, including organizers without a legal or technical background.

BORDC is also available to consult on organizing campaigns. You can contact us at organizing [at] bordc [dot] org. Review our model legislation today, and join us in saying no to drone surveillance in your community!

The Cyber Intelligence Sharing and Protection Act (CISPA) is continuing to move through Congress despite major, unresolved privacy issues.

Several weeks ago, privacy advocates, consumers associations, and technology companies all worked together during the Cyber Intelligence Sharing and Protection Act (CISPA) Week of Action to address the major privacy flaws in CISPA, H.B. 624. The week of action was a major success, with companies such as Craigslist and Firefox taking part and thousands of people contacting their representatives in Congress to express their concern around CISPA. However, the fight over CISPA is just beginning. Last week, CISPA passed out of the House Intelligence Committee by a vote of 18-2.

The sponsors of the bill, Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD), have maintained that there is no reason for concern, making inaccurate and misleading claims about the bill. They have argued that the bill does not contain overbroad provisions or definitions. Yet as EFF’s Mark Jaycox correctly notes:

The best example of a dangerous undefined term in the bill is found within the overly broad legal immunity for companies. The clause grants a company who acts in ‘good faith’ immunity for ‘any decisions made’ based off of the information it learns from the government or other companies. . . Companies should not be given carte blanche immunity to violate long-standing computer crime and privacy law. And it is notoriously hard to prove that a company acted in bad faith, in the few circumstances where you would actually find out your privacy had been violated.

(more…)

On February 26, the Supreme Court heard oral arguments in the case Maryland v. King, which raised the question of whether the Fourth Amendment permits warrantless DNA collection upon an individual’s arrest but without charge.  The case began on April 10, 2009, when Alonzo King was arrested for pointing a shotgun at a group of people.  He admitted his guilt, was originally charged with a felony assault and ended up pleading guilty to a misdemeanor.

At the time of King’s arrest, the police swabbed his mouth to gather a DNA sample, which matched DNA from an unsettled rape case four years prior – King was convicted of first-degree rape and sentenced to life in prison.  His warrantless DNA sample was the only evidence linking him to the rape case; the police had no probable cause to sample his DNA.  Patricia Millet, who heads the Supreme Court practice at Atkin Gump, explained this by saying ,”DNA is more commonly used not to identify the individual but to link the individual to other crimes for which he is not otherwise a suspect (or at least there is not probable cause to think he committed the other crime.”

There are several problematic facets to warrantless DNA collection, the first of which is that this specific form of testing appears unconstitutional according to our Fourth Amendment protections.  This is the ground on which the Supreme Court will determine whether police can conduct DNA testing upon arrest, but there are far more complex issues beyond the simple constitutionality of this sampling.

Invasion of Privacy

Justice Stephen Breyer argued that DNA tests are “no more intrusive” than fingerprints but “much more accurate.”  This is a gross overstatement on Breyer’s part – unlike fingerprints, DNA tracks an individual’s medical history, ancestry, gender – even whether or not an individual is adopted.  It is a wonder that Justice Breyer argued DNA tests are “much more accurate,” being that in 2011, over 10,500 DNA samples were taken, only 19 of which led to arrests.  Not only, then, are DNA samples fairly unproductive, resulting in a meager percentage of arrests, but they also expose some of our most personal information.

Racial Bias

DNA tests are already used as racial dragnets among whole families and communities of color, The Nation argues. Because the majority of individuals stopped by police are African American and Latino men, DNA samples taken in these instances are inherently skewed, representing a disproportionate number of men of color.  The Nation writes, “DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems.  By 2008, Britain’s National Database stored DNA from 27% of the black population and 77% of black males.” It is imposible to overstate the racial, age and gender bias present in DNA databases.

(more…)

Last week, a historic trial challenging the NYPD’s practice of stopping and frisking almost exclusively people of color in New York City got underway.  Allies of Communities United for Police Reform packed the courtroom and hundreds filled overflow rooms to watch the realities of life under the NYPD in their neighborhoods and city be brought to light in federal court.

The trial was, as described by plaintiff’s attorney Darius Charney, 14 years in the making, with its roots in challenges to the police department’s policies after the shooting of Amadou Diallo.

On Monday March 18, both sides presented their opening arguments, with the plaintiffs laying out the evidence to come showing that the NYPD has engaged in a longstanding pattern and practice of unconstitutional and race-based stops.

The central legal claims of the plaintiffs are (1) that the NYPD has a policy or practice of stopping people without the reasonable suspicion that the Fourth Amendment requires and (2) that the NYPD stops people on the basis of race in violation of the Equal Protection Clause of the 14th Amendment and Title VI.

The evidence supporting these claims is too voluminous to cover here, but several particular pieces stood out. In a meeting with NY State Senator Eric Adams, NYPD Police Chief Ray Kelly said the stop and frisk policy was designed to make young black and latino men afraid that they would be stopped wherever they left their buildings, so that “they would leave their guns at home.”

(more…)